UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

AARON D. YOUNKER,

Plaintiff,

 Civil Action 2:11-cv-00749

v. Judge Gregory L. Frost

 Magistrate Judge E.A. Preston Deavers

OHIO STATE UNIVERSITY MEDICAL

CENTER, et al.,

 

Defendants.

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Court for an initial screen of the Complaint pursuant to 28

U.S.C. §§ 1915(e)(2) and 1915A. Plaintiff is attempting to bring claims against Defendants The

Ohio State University (“OSU”) Medical Center, Paul R. Beery, Stuart Hudson, and the

Manufacturer of the “Porietex ProGrip.”1 Although Plaintiff does not provide explicit labels for

the claims within his Complaint, his action arises from a September 2010 hernia surgery. At this

time, the Court will permit Plaintiff to proceed on his claim for deliberate indifference to his

serious medical needs against Defendant Hudson. Additionally, for the reasons that follow, it is

RECOMMENDED that the Court DISMISS the remainder of Plaintiff’s claims, and the

remainder of Defendants, without prejudice.

1

 Plaintiff’s Complaint is not entirely clear as to precisely what role the two individual

Defendants played regarding his allegations. Based on the addresses Plaintiff has provided for

these Defendants, and construing the pro se Complaint liberally, as the Court must, the

undersigned assumes that Defendant Berry is a physician at the OSU Medical Center and that

Defendant Hudson is an employee of the Ohio Department of Rehabilitation and Correction. 

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I. STANDARD

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2

 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31; see also 28 U.S.C. § 1915A

(requiring the Court to screen a prisoner’s complaint “as soon as practicable” and dismiss any

portion of a the complaint if it is frivolous, malicious, or fails to state a claim). Thus, § 1915(e)

and § 1915A require sua sponte dismissal of an action upon the Court’s determination that the

action is frivolous or malicious, or upon determination that the action fails to state a claim upon

which relief may be granted. 

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). See also Hill v. Lappin, 630

2

Formerly 28 U.S.C. § 1915(d). 

2

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F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R, Civ. P. 12(b)(6) standards to review under 28

U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Although this pleading standard does not require

“‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action,’” is insufficient. Ashcroft v. Iqbal, 566

U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to

survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must

contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id.

(quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. 

In considering whether this facial plausibility standard is met, a Court must construe the

complaint in the light most favorable to the non-moving party, accept all factual allegations as

true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning

Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations

omitted). Additionally, the Court must construe pro se complaints liberally. Younis v. Pinnacle

Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). The Court is not required, however, to accept

as true mere legal conclusions unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949.

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II. ANALYSIS

As indicated above, pursuant to an initial screen,3

 at this juncture the Court will allow

Plaintiff to proceed on his deliberate indifference of serious medical need claim against

Defendant Hudson. It is RECOMMENDED, however, that the Court DISMISS Plaintiff’s

remaining claims.

To the extent Plaintiff seeks to state claims against the OSU Medical Center, and Dr.

Berry in his official capacity, these claims should be dismissed without prejudice for a lack of

subject matter jurisdiction. As this Court has previously held, the OSU Medical Center is an arm

of the state and, therefore, pursuant to the Eleventh Amendment, is immune from suit in federal

court. See, e.g., Siegler v. Ohio State University, No. 2:11–cv–170, 2011 WL 1990570, at *6

(S.D. Ohio May 23, 2011) (report and recommendation later adopted) (applying sovereign

immunity and dismissing the OSU Medical Center for lack of subject matter jurisdiction).

Plaintiff also purports to bring state-law claims for product liability. Specifically,

Plaintiff maintains that a “Porietex Progrip” mesh was used during his hernia repair surgery at

the OSU Medical Center. According to Plaintiff, after the surgery, a doctor at the Chillicothe

Correctional Institution informed him that the surgery failed. Plaintiff contends that the mesh is

defective. Additionally, Plaintiff maintains that his insides are growing into the mesh and that

the mesh has become wrapped around his internal organs, causing him extreme pain. 

Although Plaintiff is attempting to set forth a claim for product liability, he fails to

reference the Ohio Product Liability Act (“OPLA”). The OPLA, codified at Ohio Rev. Code

§§ 2307.71 to 2307.80, “explicitly eliminate[s] ‘all common law product liability claims or

3

 This determination in no way precludes Defendant from moving to dismiss Plaintiff’s

claim pursuant to Rule 12(b)(6) or 12(c).

4

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causes of action.’” Wimbush v. Wyeth, 619 F.3d 632, 639 (6th Cir. 2010) (quoting Ohio Rev.

Code § 2307.71(B)). Consequently, applying Ohio law, this Court has held that “[c]laims that

are authorized by the OPLA should be pled with reference to the applicable provision of the

OPLA.” Stratford v. SmithKline Beecham Corp., No. 2:07–CV–639, 2008 WL 2491965, at *5

(S.D. Ohio June 17, 2008) (collecting cases).

Furthermore, the undersigned finds that Plaintiff’s Complaint fails to state a facially

plausible product liability claim in its current form. To successfully plead his product liability

claim, Plaintiff must provide sufficient facts for the Court to reasonably infer a product defect. 

Compare Baldwin v. Zimmer, Inc., No. 2:10–cv–01144, 2011 WL 3652411, at *2 (S.D. Ohio

Aug. 19, 2011) (finding the plaintiffs’ complaint was insufficient when it “merely recited the

elements” of a products liability claim and “failed to identify specifically the defects or failures

at issue”); with Foust v. Stryker Corp., No. 2:10-cv-00005, 2010 WL 2572179, at *5 (S.D. Ohio

June 22, 2010) (finding a product liability claim facially plausible where the plaintiff alleged that

a surgically implanted medical device broke after it was implanted). Here, Plaintiff asserts, in

conclusory fashion, that the mesh is defective. This bare statement is not enough under Iqbal

and Twombly. Plaintiff himself surmises that his insides are growing into the mesh and that the

mesh has become wrapped around his groin region, but such allegations do not sufficiently

identify how the mesh itself has failed. In other terms, Plaintiff’s Complaint fails to detail how

the mesh, and not simply its current placement, is defective. Under these circumstances, and

factoring in the lack of reference to the OPLA, the Court finds dismissal without prejudice

appropriate.

Finally, the undersigned also finds that the Court should dismiss any separate claims

against Defendant Berry. Based on the facts Plaintiff has pled, the undersigned can only assume

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that Plaintiff is suing Defendant Berry based on his participation in either the surgery or

treatment Plaintiff received at the OSU Medical Center. Plaintiff maintains that he received

hernia repair surgery from the OSU Medical Center and that this surgery ultimately proved

unsuccessful. The ultimate failure of Plaintiff’s surgery is not enough for Plaintiff to reasonably

infer that Defendant Berry was deliberately indifferent to Plaintiff’s medical needs. 

Furthermore, to the extent that Plaintiff is attempting to plead a state-law claim for medical

malpractice, this claim also fails. Even assuming that Plaintiff has provided sufficient factual

detail to support a medical malpractice claim, he has not provided a sufficient affidavit of

merit—indicating that Defendant Berry violated the applicable standard of care—generally

required for medical malpractice claims under Ohio law.4 See Ohio R. Civ. P. 10(D)(2); Maston

v. Montgomery Cnty. Jail Med. Staff Pers., No. 3:10cv00104, 2011 WL 2442706, at *5–6 (S.D.

Ohio Apr. 18, 2011) (“To the extent Plaintiff's Amended Complaint alleges medical claims

arising under Ohio law . . . Plaintiff’s failure to attach the affidavit of merit requires dismissal . .

. .”).

III. CONCLUSION

Based on the above analysis, at this time Plaintiff may proceed on his claim for deliberate

indifference to his serious medical needs against Defendant Hudson. It is RECOMMENDED

that the Court DISMISS the remainder of Plaintiff’s claims, and the remaining Defendants,

without prejudice. 

The United States Marshal is DIRECTED to serve by certified mail upon Defendant

Hudson a summons, a copy of the Complaint, and a copy of this Order. Defendant Hudson is

4

 Plaintiff attaches statements of other inmates to his Complaint, but these statements fail

to meet the requirements of Ohio R. Civ. P. 10(D)(2).

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ORDERED to answer or otherwise respond to the Complaint within 45 days of being served

with a summons and a copy of the Complaint.

The Clerk of Court is DIRECTED to mail a courtesy copy of the Complaint and a copy

of this Order to the Attorney General of Ohio, Corrections Litigation Section, 150 East Gay

Street, 16th Floor, Columbus, Ohio 43215. 

IV. NOTICE

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

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Date: September 29, 2011 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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